Celona v. Erickson

Federal District Court for Massachusetts

Challenge to the unlawful denial of an LTC renewal and the warrantless seizure of property belonging to the plaintiff and his family.

Filed October 26, 2015

Celona v. Erickson

Christopher Celona possessed a Massachusetts license to carry firearms (LTC) for over 20 years. In April of 2015, he was notified by the Gardner Police Department that the renewal if his LTC would be denied due to an out-of-state marijuana conviction. At the age of eighteen, Celona was convicted of possessing a small amount of marijuana in New Hampshire and paid only a small fine.

Celona was notified of the denial when two Gardner Police officers arrived at his home and presented him with a letter from Gardner Police Chief Neil Erickson. This letter, signed by only the police chief, informed Celona that his LTC renewal was denied and that he was to surrender his firearms to the Gardner Police Department. Despite the absence of a duly-issued search warrant, the officers demanded entry into Celona's home, stating the Chief’s letter gave them the authority to enter the home and seize Celona's firearms. Once inside the home, the officers proceeded to seize a number of firearms belonging to Celona. The Gardner Police also took it upon themselves to seize firearms belonging to Celona's wife and father despite not having any reason to believe that Celona's father or wife were unlicensed or otherwise prohibited by law from possessing firearms.

Among the firearms seized were ones that Celona and his wife kept for the specific purpose of protecting their livestock, in this case chickens, that they raise on their property. Following the seizure the Celonas were forced to watch helplessly as a coyote destroyed one of their chickens.

In the days following the seizure, Celona properly transferred ownership of his firearms to his father using the Massachusetts Gun Transaction Portal, as required by law. When the father presented evidence of the transfer to the Gardner Police Department in order to retrieve the firearms formerly owned by his son, he was turned away. The Gardner Police also refused to return firearms belonging to Celona's father at the time of the seizure claiming they were not “properly registered” despite the absence of any legal requirement that they be registered. When Celona's wife attempted to retrieve seized firearms belonging to her, she was also turned away for the same reason. Only after Celona's father and wife logged their firearms in the Massachusetts Gun Transaction Portal did Gardner Police return their property to them.

The Celonas are seeking monetary damages for both the deprivation of their rights and the resulting damage to their property.

This challenge attempts to resolve a number of legal issues of great concern to Massachusetts gun owners.

First, this case seeks to halt the longstanding practice of Massachusetts police departments of treating the written notice of a license suspension, revocation, or renewal denial as a de facto search warrant. These required written notices lack any form of due process as they are not evaluated by a disinterested judicial officer. They are most often form letters issued by the state and signed by the chief or his designee. Existing case law from Massachusetts courts is clear that an otherwise peaceful party who no longer has a valid firearms license does not constitute an exception to the warrant requirements of the Fourth Amendment. Pasqualone v. Gately, 422 Mass. 398, 401-02 (1996). Nonetheless, police departments around the Commonwealth continue to enter the homes of gun owners and seize their firearms when licenses are revoked, suspended or denied, often using coercive tactics and the threat of felony charges in the face of any resistance from the occupant.

Second, Massachusetts law generally bars those who have been convicted of controlled substance offenses from obtaining an LTC, necessary to own and carry handguns. See M.G.L. ch. 140, §131(d)(i)(E) and (ii)(E). Two decisions in cases brought by Comm2A have been issued in federal courts clearly ruling that the application of this law to out-of-state first offense convictions for possession of small amounts of marijuana is a violation of the Second Amendment. Wesson v. Fowler, 13-10469-RGS (D. Mass, Apr. 18, 2014); Richmond v. Peraino, No. 15-10933-LTS (D. Mass, Sep. 11, 2014). However, Police departments have continued to enforce this statute despite two federal court rulings because the Executive Office of Public Safety and Security (EOPSS) has taken the unprecedented position that the rulings only apply to the specific plaintiffs in those cases. This case attempts to gain clarity with respect to the previous rulings and ensure the rights of other applicants in similar situations are not violated in a similar manner.

Finally, this challenge attempts to establish that authorities may not refuse to return firearms to a person merely because those authorities would prefer a person to engage in an activity that is not legally required. Massachusetts law does not require that firearms be “registered” but instead that gun owners report the transaction or acquisition of newly acquired firearms under certain circumstances, seeM.G.L. ch. 140, §128A. Some firearms, such as those that were brought into the Commonwealth as part of a move from another state, are not required to be reported. This case attempts to assert it is not the province of police to hold property hostage in order to compel activity without a legal basis for doing so.

The Celona family is represented by Worcester, Massachusetts attorney J. Steven Foley.